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17
Court of Criminal Appeal 20 October 2005

Regina v HATHAWAY

[2005] NSWCCA 368

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Regina v Hathaway [2005] NSWCCA 368
Court: Court of Criminal Appeal, New South Wales
Date: 20 October 2005
Judge(s): Spigelman CJ; McClellan CJ at CL; Hall J

Background

The applicant pleaded guilty in the Albury District Court to one count of break and enter in circumstances of special aggravation, specifically malicious wounding, contrary to s 112(3) of the Crimes Act 1900. The offence carried a maximum penalty of 25 years imprisonment. Blackmore DCJ imposed a sentence of six years and nine months, with a non-parole period of five years.

The offence occurred on 1 August 2002 at Hay Public School. The applicant was found inside the school's administration block after forcing entry. When the school principal arrived to investigate and entered the building, the applicant grabbed him, threw him to the floor, and struck him at least four times over the head and back with an iron tyre lever. The principal suffered lacerations requiring stitching, bruising, and ongoing psychological harm. The applicant fled before police arrived.

The applicant was not arrested until 8 June 2004, nearly two years after the offence. He had a prior criminal record including offences of assault, assault occasioning actual bodily harm, and break and enter, and at the time of the offence he was on bail for a number of unrelated charges.

  • Whether the sentencing judge erred by taking into account the applicant's prior convictions as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred by failing to have sufficient regard to the delay between the commission of the offence and the applicant's arrest
  • Whether the sentencing judge erred in the application of the discount for the guilty plea
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

On the question of prior convictions as an aggravating factor, Spigelman CJ noted this was not an appropriate vehicle for the Court to revisit the recent consistent line of authority concerning the relationship between ss 21A(2)(d) and 21A(4) of the Crimes (Sentencing Procedure) Act 1999. His Honour observed that if any inconsistency with earlier High Court authority in Veen v The Queen (No 2) required resolution, that task should be undertaken by a bench of five judges.

On the guilty plea discount, the Court confirmed that the guideline judgment in R v Thomson and Houlton establishes a range but does not make 25 per cent a near-automatic entitlement for an early plea. Spigelman CJ noted the sentencing judge's reference to "maximum benefit" did not necessarily mean his Honour had 25 per cent in mind for that factor alone. The matter remained within the sentencing judge's discretion. The applicant's submission that a 35 per cent discount should have been applied was rejected.

On delay, the Court found that the sentencing judge had properly taken into account the steps the applicant had taken during the period between the offence and arrest, including apparent rehabilitation, a stable personal relationship, and improved drug use. Spigelman CJ was satisfied that those circumstances had been given significant weight and that, without them, the sentence would have been considerably longer.

On manifest excess, McClellan CJ at CL concluded that the offence was objectively serious, involving a vicious assault on a defenceless person on school property at night. The applicant had reoffended while on conditional liberty and possessed a criminal history requiring particular attention to retribution and personal deterrence. The sentence was found to be within the appropriate range. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal declined to revisit the line of authority on ss 21A(2)(d) and 21A(4) of the Crimes (Sentencing Procedure) Act 1999, signalling that any reconsideration of those provisions in light of Veen v The Queen (No 2) would require a bench of five judges.
  • A guilty plea discount of 25 per cent is not a near-automatic entitlement under the Thomson and Houlton guideline; it remains a matter for the sentencing judge's discretion, and the applicant's submission for a 35 per cent discount was firmly rejected.
  • Rehabilitation and other positive developments occurring during a period of delay between offence and arrest are capable of attracting significant mitigation, provided the sentencing judge properly takes them into account.
  • Where an applicant reoffends while on bail and has an extensive record of escalating offences, the sentencing court is entitled to emphasise retribution and personal deterrence as significant sentencing considerations.
  • In dismissing the appeal, the Court confirmed that even where a sentencing error might theoretically be identified, s 6(3) of the Criminal Appeal Act 1912 requires consideration of whether a lesser sentence was in fact warranted; here, the Court found it was not.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Markarian (2005) 79 ALJR 1048
- Mill v The Queen (1988) 166 CLR 59
- Ryan v The Queen (2001) 206 CLR 267
- R v Todd [1982] 2 NSWLR 517
- R v Ponfield (1999) 48 NSWLR 327
- R v Gallagher (1981) 23 NSWLR 220
- R v Bellamy [2005] NSWCCA 329; R v Blair [2005] NSWCCA 78; R v Shorten [2005] NSWCCA 106; R v McQueeney [2005] NSWCCA 168; R v Webster [2005] NSWCCA 110; and other NSWCCA decisions as cited